Citation Nr: 0930844
Decision Date: 08/18/09 Archive Date: 08/27/09
DOCKET NO. 07-09 933A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office in
Houston, Texas
THE ISSUE
Entitlement to recognition as the Veteran's surviving spouse
for VA benefit purposes.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. L. Krasinski, Counsel
INTRODUCTION
The Veteran served on active duty from October 1950 to April
1971. He died on February [redacted], 2000. The appellant asserts
that she should be recognized as the Veteran's surviving
spouse.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a September 2005 determination of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas, which granted entitlement to service
connection for the Veteran's cause of death and eligibility
for Dependents' Educational Assistance pursuant to 38 U.S.C.
Chapter 35 but determined that the appellant was not
recognized as the Veteran's surviving spouse.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The appellant contends that she should be recognized as the
Veteran's surviving spouse because she was married to the
Veteran under the laws of Columbia, South America. The
appellant applied for Dependency and Indemnity Compensation
(DIC) benefits in January 2005. With her application, she
submitted a marriage registration showing that she married
the Veteran in July 1973 in Venezuela. The Veteran died in
February 2000. The appellant submitted a divorce decree
showing that the appellant divorced her first husband, R.S.M.
in October 2001, after the Veteran's death. In September
2005, the RO determined that the appellant was not entitled
to be recognized as the Veteran's surviving spouse since the
evidence showed that the appellant was married to R.S.M. at
the time she alleged she was married to the Veteran. The
appellant appealed this determination. In May 2006, she
submitted a document from a Common Law Union Proceedings
dated in 2003. This proceeding appears to relate to legal
action between the appellant and the inheritors of the
Veteran. This document indicates that the appellant had
divorced R.S.M. in December 1997. A divorce decree showing a
divorce between the appellant and R.S.M. in 1997 is not of
record. The record further shows that in June 1949, the
Veteran had married C.L.C. There is no evidence of record
showing that the Veteran's marriage to C.L.C. had dissolved
prior to a marriage to the appellant.
VA death benefits may be paid to a surviving spouse who was
married to the veteran: (1) one year or more prior to the
veteran's death or (2) for any period of time, if a child was
born of the marriage, or was born to them before the
marriage. 38 U.S.C.A. §§ 1102, 1304, 1541 (West 2002); 38
C.F.R. § 3.54 (2008).
To be recognized as the veteran's surviving spouse for the
purpose of establishing entitlement to VA death benefits, the
appellant must be a person of the opposite sex who was the
spouse of a veteran at the time of the veteran's death, and
who lived with the veteran continuously from the date of
marriage to the date of the veteran's death (except where
there was a separation which was due to the misconduct of, or
procured by, the veteran without the fault of the spouse) and
has not remarried. 38 U.S.C.A. § 101(3) (West 2002); 38
C.F.R. §§ 3.50(b)(1), 3.53 (West 2002).
"Spouse" means a person of the opposite sex whose "marriage"
to the veteran meets the requirements of 38 C.F.R. §§ 3.1(j),
3.50(a). For VA benefits purposes, a marriage means a
marriage valid under the law of the place where the parties
resided at the time of marriage, or the law of the place
where the parties resided when the right to benefits accrued.
38 C.F.R. § 3.1(j).
A marriage can be established by several types of evidence,
including a copy or abstract of the public record of
marriage, or a copy of the church record of marriage
containing sufficient data to identify the parties, the date
and place of marriage, and the number of prior marriages if
shown on the official record. 38 C.F.R. § 3.205(a)(1)
(2008).
Where an attempted marriage is invalid by reason of legal
impediment, VA regulations allow for certain attempted
marriages to be nevertheless "deemed valid" if specific legal
requirements are met. Basically, such an attempted marriage
will be "deemed valid" if: (a) the attempted marriage
occurred one year or more before the veteran died; and (b)
the claimant entered into the marriage without knowledge of
the impediment; and (c) the claimant cohabited with the
veteran continuously from the date of the attempted marriage
until his death; and (d) no other claimant has been found to
be entitled to gratuitous VA death benefits. 38 U.S.C.A. §
103 (West 2002); 38 C.F.R. § 3.52 (2008). If the provisions
of 38 C.F.R. § 3.205(a) are satisfied as well as those of 38
C.F.R. § 3.52, the claimant's signed statement that she had
no knowledge of an impediment to a marriage to the veteran
will be accepted as proof of the fact, in the absence of
information to the contrary. 38 C.F.R. § 3.205(c) (2008).
In the present case, the appellant may be able to establish
recognition as a surviving spouse based upon a valid marriage
to the Veteran or based upon a "deemed valid" marriage to
the Veteran. On remand, the appellant should submit proof of
her marriage to the Veteran in 1973 in Venezuela. Such proof
may be a copy or abstract of the public record or church
record of the marriage, affidavit from the clergyman or
magistrate who officiated the marriage ceremony, an original
certificate of marriage, or other evidence as set forth in
38 C.F.R. § 3.205(a).
The appellant may also be able to establish that her marriage
to the Veteran was "deemed valid." The Board notes that
the country of Columbia does recognize de facto marriages
(common law marriages). However, under the law of Columbia,
there were two legal impediments to the Veteran's and
appellant's de facto marriage since each party had another
spouse at the time of the de facto marriage. Therefore, if
the appellant is able to establish the she entered into the
de facto marriage with the Veteran without knowledge of the
legal impediment, her attempted de facto marriage to the
Veteran may be "deemed valid." The appellant may be able
to argue that she had no knowledge of the Veteran's prior
marriage. However, it would be difficult for the appellant
to argue that she had no knowledge of her own marriage to
R.S.M. since she admitted this marriage and submitted
evidence of this marriage. Therefore, if the appellant is
able to submit evidence showing that her marriage to R.S.M.
ended, she may be able to establish that the marriage to the
Veteran was "deemed valid" pursuant to 38 U.S.C.A. § 103;
38 C.F.R. § 3.52.
The Board finds that on remand, the appellant should be asked
to submit a copy of the official divorce decree between her
and R.S.M. dated in December 1997 and/or evidence that R.S.M.
is deceased. She should also be asked to submit evidence
showing that the marriage between the Veteran and C.L.C. was
dissolved and/or that C.L.C. is deceased.
The Veterans Claims Assistance Act of 2000 (VCAA) and its
implementing regulations provide, in part, that VA will
notify the claimant and his or her representative, if any, of
the information and medical or lay evidence not previously
provided to the Secretary that is necessary to substantiate a
claim. As part of the notice, VA is to specifically inform
the claimant and his of her representative, if any, of which
portion of the evidence the claimant is to provide and which
portion of the evidence VA will attempt to obtain on the
claimant's behalf. They also require VA to assist a claimant
in obtaining evidence necessary to substantiate a claim, but
such assistance is not required if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp.
2009); 38 C.F.R. § 3.159 (2008).
In this case, VA has not provided the appellant with adequate
VCAA notice of the evidence and information needed to
substantiate the claim of entitlement to recognition as a
surviving spouse. The VCAA notice sent to the appellant
informed the appellant of the information and evidence
necessary to substantiate a claim for DIC but did not address
status as a surviving spouse to include valid marriages. In
May 2006, the appellant asked VA to advise her how to
substantiate her claim. Any decision to proceed in
adjudicating it would therefore prejudice the appellant in
the disposition thereof. Bernard v. Brown, 4 Vet. App. 384,
392-94 (1993).
Accordingly, the case is REMANDED for the following action:
1. Please send the appellant corrective
VCAA notice under 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b), that includes an
explanation of the information or evidence
needed to establish recognition as a
surviving spouse to include notice of the
regulations pertinent to proof of
marriage, divorce, and marriages that are
deemed valid. Please send the appellant a
copy of the laws from Columbia regarding
de facto marriages and copy of the laws of
Venezuela regarding valid marriages.
2. Please ask the appellant to submit the
following evidence: proof of her marriage
to the Veteran in Venezuela in 1973 such
as the original marriage certificate or a
copy of the original marriage certificate
or other proof as set forth in 38 C.F.R.
§ 3.205(a). Ask the appellant to submit a
copy of the official divorce decree
between her and R.S.M. dated in December
1997 and/or any evidence that R.S.M. is
deceased; and evidence showing that the
marriage between the Veteran and C.L.C.
was dissolved and/or that C.L.C. is
deceased.
3. Readjudicate the issue on appeal. If
all the desired benefit is not granted, a
supplemental statement of the case should
be furnished to the appellant and her
representative. The case should then be
returned to the Board, if otherwise in
order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).